Does the mitigation rule apply to mitigated punishment?

5 In People v. Vasquez, supra, 7 Cal.App.4th at p. 767, 9 Cal.Rptr.2d 255, we stated that application of mitigated punishment was "permissible because the restricted definition generally favors defendants." This principle of construction is more venerable than the mitigation rule itself:

"The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment." (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37, 42.)